April 20th, 2017

Fabre Defendants – Does A Defendant Want To Invite Invisible Men Into Their Courtroom?

By, Ellen G. Smith, Esq.

We have all heard of the elephant in the room, but what about the invisible man in the courtroom?  That invisible man is also known as the Fabre defendant.  See Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).  The Fabre defendant is a very important player at trial when dealing with multi-party and/or multi-defendant litigation.

The Fabre defendant usually arises when one or more parties settle in a case before trial, leaving other defendants remaining in the litigation and at trial. These remaining parties at trial then get to point their finger at the settled parties saying “they did it” either wholly or partially.  The burden is on the remaining defendant(s) to prove, by a preponderance of the evidence, the Fabre defendant(s) are at fault.  However, the decision of including or not including Fabre defendants can have a big impact on findings or economic and noneconomic damages.

The Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So. 2d 249, 253-53 (Fla. 1995) opinion, after the enactment of the three setoff statutes and section 768.81, clarifies that “the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable pursuant to section 768.81(3), but held that the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability. D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003), citing Wells, 659 So. 2d at 253.

Two cases since the Fabre case should cause remaining defendants to take pause and consider whether or not to include a settled out or nonparty defendant(s) on a verdict form.  In particular, the Supreme Court decision in Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001) provides an important distinction for a Fabre defendant who is found not liable (on the verdict form with a 0% liability verdict) versus a Fabre defendant not found liable (not included on the verdict form, so no liability verdict is determined). In Gouty, the plaintiff sued a gun owner and a gun manufacturer after being injured. Id. at 960. Prior to trial, the plaintiff settled with the gun manufacturer.  Id.  At trial, the jury found the gun owner 100% at fault, and attributed 0% of the fault to the gun manufacturer. Id. After trial, the gun owner sought to reduce the jury verdict of economic damages by the amount of settlement paid by the gun manufacturer. Id. The Court explained “that the setoff provisions, which were enacted before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages.” Id. at 963, quoting Wells, 659 So. 2d at 252-53 (Fla. 1995).  Thus, the Court held that a defendant who is found solely liable does not receive a setoff because the parties are not joint tortfeasors. Gouty, 795 So. 2d at 965.  The setoff statutes only apply where multiple defendants are liable for the same injury, thus if one defendant is found not liable, the two defendants are not liable for the same injury. See id. Here, the catch is if the gun owner had not listed the gun manufacturer as a Fabre defendant then the gun owner would have received a setoff of the settlement amount for economic damages to prevent the plaintiff from receiving a double recovery.

Furthermore, this point is emphasized in the D’Angelo holding.  The plaintiffs, the Fitzmaurices, sued the doctor who allegedly left a laparotomy pad inside the plaintiff, Mr. Fitzmaurice, during an appendectomy. D’Angelo, 863 So. 2d at 312.  Prior to trial, the plaintiffs settled with the medical center where the surgery took place. Id. At trial, only the doctor was listed on the verdict form, and the jury did not make a determination as to the medical center’s liability or apportion fault.  Id. at 313. The jury awarded damages to the plaintiffs. Id.  The doctor then sought a setoff of the economic damages for the settlement reached between the plaintiffs and the hospital. Id. The trial court granted the doctors motion and reduced the economic damages but refused to reduce the noneconomic damages. Id. On appeal, the court explained that “[u]nlike noneconomic damages, or which section 768.81 eliminated joint and several liability, the setoff statues continue to apply to economic damages for which parties continue to be subject to joint and several liability.” Id. at 316.

Thus the important take home from Wells, Gouty and D’Angelo is that if a defendant wants a reduction for non-economic damages then that defendant must list the settled out defendant(s) as Fabre defendants on the verdict form and prove their fault.  However, the economic damages, based on the setoff statues, does allow a set-off of economic damages even if a nonparty defendant is not found liable.

Based on these rulings, a defendant who faces trial leaving behind settled out parties need to carefully consider whether or not to include these settled out defendants and have them be the invisible men in the court room.  On one hand, the noneconomic damages award might be reduced if the Fabre defendants are apportioned fault.  On the other hand, if the jury finds the Fabre defendants not liable, then the defendant not only receives 100% of the noneconomic damages but also will not receive a set-off of the economic damages.

November 2nd, 2015


By, Alexander Brockmeyer, Esq.

Preservation of error is a concept litigators know all too well. Generally, to raise an error on appeal a litigant must object at trial when the alleged error occurs. F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (citing J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)). “The contemporaneous objection requirement originated in the English legal system as a mechanism for preserving error for appellate review, and the requirement was carried forward and generally adopted in America. Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1016 (Fla. 2000) (citations omitted). The Florida Supreme Court explained the rationale of the objection requirement as being:

“…based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him [or her] an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.” Id. (quoting Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).

However, how does a litigant preserve an alleged error of defect that appears for the first time in a judgment? File a motion for rehearing. Generally, a litigant need not file a motion for rehearing if he or she is “displeased with a trial court’s decision on a matter because it found the opposing argument more persuasive….” Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011). However, Florida’s appellate courts require a litigant to file a motion for rehearing in order to preserve an error appearing for the first time in the judgment itself, an error that occurred at trial, or a judgment entered after a jury trial. Id.; New Hampshire Indem Co. v. Gray, 2015 WL 5845240, *2 (Fla. 1st DCA 2015); Lake Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So. 2d 139, 142 (Fla. 2d DCA 1962).

Therefore, the next time you receive a final judgment ask yourself, should I file for rehearing? If the final judgment contains something you are seeing for the first time, the answer is most likely yes. Failure to do so may result in the appellate court refusing to consider an otherwise meritorious argument based on preservation issues.







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